VOICENET COMMUNICATIONS, INC. v. PAPPERT

The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge

MEMORANDUM AND ORDER

The Court decides here the question of whether a pending
Pennsylvania investigating grand jury is an "ongoing proceeding"
under Younger v. Harris, 401 U.S. 37 (1971), obligating the
Court to abstain. The Court finds that it is not.

I. Background

The plaintiffs, Voicenet Communications, Inc. ("Voicenet") and
Omni Telecom, Inc. ("OTI"), have sued various law enforcement
representatives,*fn1 alleging violations of their
constitutional and statutory rights by the defendants' seizure of
Quikvue's computer equipment, pursuant to a search warrant. The plaintiffs provide computer access to Usenet, an internet
discussion and posting forum, for their subscribers.*fn2
Usenet consists of newsgroups that contain articles posted daily
on many different topics. Compl. ¶¶ 19, 21-23. OTI and Voicenet
designed, maintained, and made Quikvue, a Usenet newsreader
service, available to its customers in September of
2003.*fn3 Quikvue is a web-based newsreader that allows its
users to access and view Usenet content. Compl. ¶¶ 31-32.

The Affidavit of Probable Cause alleges that the defendant
Deery received a complaint in November of 2003 regarding the
possible distribution and possession of child pornography on
Quikvue. See Aff. of Probable Cause for Search Warrant, at 2-4.
The Bucks County District Attorney's Office obtained a search
warrant on January 20, 2004. On January 21, 2004, the defendants
seized equipment used for the operation of Quikvue. See Compl.
¶ 41.

The plaintiffs filed a complaint and motion for a temporary
restraining order and a preliminary injunction against the
defendants on March 26, 2004. The complaint alleges that the
defendants' seizure of the plaintiffs' servers was illegal and
that the defendants' actions were an impermissible prior restraint on free speech.*fn4 In the complaint, the
plaintiffs request money damages and injunctive and declaratory
relief.*fn5

The Court held a conference with counsel on March 29, 2004, at
which time the plaintiffs agreed to withdraw their motion for a
temporary restraining order. Counsel then agreed to a hearing to discuss the legal issues raised in the motion for a
preliminary injunction, including Younger abstention issues.
The Court held oral argument on April 12, 2004.

The Court next held conferences with counsel on April 20, 2004
and April 23, 2004. The Court told counsel its view at that time
that abstention was not appropriate because there was no ongoing
state proceeding. The Court urged the defendants to return the
equipment, based on concern about possible First Amendment
violations. The defendants agreed to the return. The defendants
also agreed not to review any subscriber information that was
seized without giving advance notice to the plaintiffs.

The Court sent a letter to counsel on June 21, 2004 explaining
that the Court was planning to issue a decision by July 2, 2004
on the plaintiffs' motion for preliminary injunction. On July 2,
2004, however, the Court received a letter from the defendants
explaining that an investigating grand jury had been convened in
Bucks County and renewing its request that the Court abstain
under Younger.

The Court scheduled a hearing for July 13, 2004 to discuss the
defendants' renewed motion to abstain. On July 12, 2004, the
defendants Pappert and Deery filed a motion to quash subpoenas of
Special Agent Deery and Senior Supervisor Special Agent Arter of
the Computer Forensics Unit. On the same day, the defendants
Gibbons, McDonough, and Thiel filed a motion to vacate this
Court's Order of July 7, 2004, or, in the alternative, to quash subpoenas.*fn6 The Court issued an Order stating that
the motions to quash, as well as the Younger abstention issues,
would be argued at the hearing the next day, but no witnesses
need attend at that time.

At the hearing on July 13, 2004, counsel made arguments about
the new developments and whether abstention is now appropriate.
Counsel informed the Court that the plaintiffs' counsel had
entered their appearance on behalf of Voicenet and OTI before the
Honorable Kenneth G. Biehn of the Bucks County Court of Common
Pleas on June 17, 2004. On June 22, 2004, Judge Biehn, as the
supervising judge of the grand jury, granted the plaintiffs'
Petition for a Continuance of Grand Jury Appearance and Access to
Documents Relating to Grand Jury Administration. On June 30,
2004, the plaintiffs filed an Omnibus Motion to Quash Grand Jury
Investigation. The supervising judge denied that motion and
issued an opinion denying the appeal of that decision on July 7,
2004. The plaintiffs filed an emergency application for review on
July 9, 2004 with the Pennsylvania Supreme Court.

At the July 13, 2004 hearing before this Court, the parties
agreed that the Court could not dismiss the entire case even if
Younger is applicable, because the plaintiffs seek money damages in addition to injunctive and declaratory
relief.*fn7 The Court then issued a Memorandum and Order
denying the motion for a preliminary injunction on July 15, 2004.
The plaintiffs have appealed the denial of the preliminary
injunction. The Court now turns to the Younger abstention
issues for the rest of the case.

II. Analysis

&nbsp; The defendants ask the Court to abstain from deciding this case
under Younger. The Third Circuit has stated, "Abstention under
Younger is appropriate only where: (1) there are ongoing state
proceedings that are judicial in nature; (2) the state
proceedings implicate important state interests; and (3) the
state proceedings afford an adequate opportunity to raise the
federal claims." Lui v. Comm'n on Adult Entm't Establishments of
Del., 369 F.3d 319, 326 (3d Cir. 2004) (citing Gwynedd Props.,
Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1200 (3d Cir.
1992)). The question is whether an investigative grand jury satisfies
the requirement of Younger.*fn8 The plaintiffs rely on a
case from this circuit in which the Court of Appeals held that a
New Jersey grand jury proceeding did not invoke Younger
abstention. Monaghan v. Deakins, 798 F.2d 632 (3d Cir. 1986),
aff'd in part and vacated in part, 484 U.S. 193 (1988). The
court ruled that the grand jury ...

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